This is accomplished by means of conducting the voting in two very different ways from other football polls:

The first vote does not take place until after the games of Week Six have been played. Voters are not asked to evaluate teams based on preseason expectations and are not expected to use those as a baseline from which to rank teams for the rest of the year.

Rather than being required to rank twenty five D-1 teams in order of preference, Mumme Poll voters submit ballots of the top twelve teams in the country, without ranking (other than to designate the top five of those twelve, for use as a tiebreaker). The poll rankings are then compiled by means of approval voting; that is, the teams are ranked in the order of the total number of times they appear on voters’ ballots.

The ballots won’t really start in earnest until the end of week six, but register now.

4.0 Point Stance: No, I hadn’t seen that, thanks. That does seem weird. Most of the cases that apply the first amendment require the work to have some kind of artistic merit to the use of the likeness — i.e. a parody or some larger theme going on. This appears to be just a straightforward copying of his image. He did bring his case under a different legal theory, but I’m not sure why this rationale, if accepted, wouldn’t also bar a right of publicity lawsuit.

If you can track down this opinion I’d like to see it. Like you I find this weak. It’s not to say he should automatically win, but the first amendment as a blanket bar seems wrong. Let’s say I create a game called “Pro golf,” where you can be either Tiger Woods, or Jack Nicklaus — i.e. your avatar looks like those golfers. When they inevitably sue me, would I have a defense that their lawsuit must fail immediately because, hey, “video games are expressive works protected by the First Amendment,” you know.

No, I don’t think that would work at all, so I’m not sure why that works in Jim Brown’s case. Maybe he loses because he can’t prove damages or that they’ve improperly used his likeness in other ways, or maybe that a Cleveland Brown wearing 32 isn’t enough, but the blanket first amendment bar seems wacky.

On review it’s not that bad, as Judge Cooper only deals with Brown’s Lanham Act claim for false endorsement. This is his weakest claim by far; even without the First Amendment defense I don’t think a jury would have found that the existence of his character in the game constituted an endorsement. Once she dismissed that lone federal law claim she punted to state court for the common law right of publicity and Civil Code 3344 claims, which are much stronger imho.

The one finding I strongly disagree with is the judge’s claim that Madden is an “expressive work,” citing the Tiger Woods painting case from the 6th circuit. To me it seems to be nothing of the sort. It’s just electronic football.